Com. v. Johnson

• Decision Date: 23 February 1978
• Citation: 373 N.E.2d 1121,374 Mass. 453
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1121

373 N.E.2d 1121

374 Mass. 453

COMMONWEALTH v. David R. JOHNSON.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 3, 1977.

Decided Feb. 23, 1978.

Robert S. Potters, Boston, for defendant.

Helen Murphy Doona, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

The defendant was convicted by a jury of the crimes of murder in the first degree (G.L. c. 265, § 1), and breaking and entering a dwelling house in the nighttime with intent to commit a felony and assaulting a person therein (G.L. c. 266, § 14). The cases are now before us on the defendant's appeals under G.L. c. 278, §§ 33A-33G.

The defendant claims errors by the trial judge with respect to (a) his failure to take curative action concerning alleged improper statements made by the prosecutor in the course of his final argument to the jury, and (b) his instructions to the jury on the effect of the defendant's claimed intoxication at the time of the alleged crimes.

As to the alleged improper argument by the prosecutor the defendant relies on an exception claimed at the trial, and as to the alleged error or deficiency in the instructions he relies primarily on the broad review prescribed by G.L. c. 278, § 33E, for a "capital case" as defined therein. ¹ As to the first point there is a question whether the exception was claimed seasonably. After full review we conclude that the defendant is not entitled to relief, and that the judgments should be affirmed.

We summarize the evidence to the extent necessary for disposition of these appeals.

Walter Rudd, the victim, was seventy-four years old and lived alone in a first-floor apartment in Brockton. On the morning of February 18, 1975, his daughter and granddaughter tried without success to reach him by telephone and therefore went to his apartment just before noon. They entered with a key which he had given them and they found him dead. He was seated in a chair opposite a television which was in operation. The screen to a window in the kitchen of his apartment had been removed from the outside and the window was wide open. The screen was found on the porch outside the apartment, leaning against the wall under the window. Several articles of furniture in the victim's parlor were found to have been moved or upset. A screw driver, an ash tray, and the victim's cane were found on the floor several feet away from him. His eyeglasses were broken. His wallet and bank book, each containing some money perhaps $20 to $40 in currency were found on a table beside his chair. There was blood on his forehead, a blood stain on his undershirt in the area of the left side of his chest, and another on the rug beneath his chair. The victim's bed was fully made up, indicating he had not gone to bed the previous night. Photographs taken by a police officer that same day depicting substantially all of the conditions described above were introduced in evidence.

The medical examiner arrived at the victim's apartment at 1:40 P.M. on February 18, 1975. On seeing the victim's body he "made a superficial, cursory examination . . . (and) found spatterings of blood and a marked rigor, indicating to . . . (him that the victim) had in all probability been dead 10 to 12 hours." Later that afternoon he and a forensic pathologist performed an autopsy on the body and both testified at the trial. The autopsy revealed that the victim had suffered a stab wound on the left lateral chest, between the eighth and ninth ribs, penetrating entirely through the lower lobe of the left lung. The wound was variously described as between six and eight inches deep, and it penetrated the aorta. The victim died as a result of that "stab wound of his left chest with massive internal bleeding into his left thoracic cage."

The evidence tending to implicate the defendant in the crimes charged against him consisted almost entirely of admissions attributed to him and to his alleged accomplice, Harold Williams, ² by three of their friends who were called and testified as witnesses for the prosecution. ³

Williams was living with K.P. for some time through February 17, 1975. Williams and the defendant were at K.P.'s apartment between 4:30 and 5 P.M. on that day. It can be inferred that when they left there Williams took with him a knife belonging to K.P. K.P. next saw them at some time between 9 and 10 P.M., at which time the defendant had a cut on his hand which he said was caused by punching a wall.

At some time between 10:30 and 11 P.M. on that same evening, the defendant and Williams arrived at the apartment of D.G. where they had a conversation with D.G. and also with B.P., who was there when they arrived. The defendant was asked about some blood on his hand and he explained it by saying that he had punched a wall. He said that he and Williams had just pulled a "B and E" in somebody's house, and that they got nothing in the break. To the witnesses D.G. and B.P. this meant that the two men had broken and entered somebody's house. The defendant said that he and Williams "went in the guy's window and that when they got in there the old guy started making some noise, he was hollering, so they went over to him and they . . . tried to put the screw driver into him and it wouldn't go in, so (the defendant) asked (Williams) for a knife and (Williams) gave it to him." The defendant then stabbed the man. During this same conversation Williams said that during the assault the victim was going to grab his cane, so he grabbed it before him and threw it across the room. The defendant and Williams were in D.G.'s apartment for a period estimated to be from two to six minutes. B.P. testified that the defendant, at this time, was "messed up . . . (s)taggering, drunk, just walking, falling all over the place," that there was an odor of alcohol from his breath, that his eyes were "half closed," that he fell down a few times, and that in his opinion the defendant was then drunk.

The following morning, February 18, 1975, when the defendant and B.P. met for breakfast, the defendant repeated substantially what he had told B.P. the previous evening about the break and entry and the assault on the occupant. The defendant said that he hoped the victim "was all right." That same morning there was a conversation between the defendant, Williams and K.P. during which Williams told K.P. that the defendant owed her a knife. K.P. checked her knives and discovered that one knife was missing. She described it as having a blade which was about an inch or an inch and one-half wide and about four to five inches long. It was a knife she kept in a drawer and did not use regularly.

The defendant was placed under arrest at the apartment of K.P. on February 19, 1975. The place of arrest was slightly over a quarter of a mile from the victim's apartment.

The statement of additional evidence or facts is deferred to our discussion of the particular issues raised by the defendant.

1. Prosecutor's final argument to the jury. The defendant bases his claim for review of the alleged improper arguments by the prosecutor on an exception that he purportedly claimed at the trial. However, an examination of the transcript discloses that the defendant did not call these statements to the attention of the judge during, or at the close of, the prosecutor's argument. He did not do so until after the judge had finished his instructions to the jury and was ready to submit the case to them. In addition, one of the claims of error that the defendant now makes was not raised at all during the trial.

We have held in a number of cases that "(i)t is the general rule (that) in trials of both criminal and civil causes . . . where an improper argument is addressed to a jury the attention of the judge should be called to it at once." Commonwealth v. Richmond, 207 Mass. 240, 250, 93 N.E. 816, 820 (1911). Commonwealth v. Homer, 235 Mass. 526, 536, 127 N.E. 517 (1920). Commonwealth v. Hassan, 235 Mass. 26, 32-33, 126 N.E. 287 (1920). See Commonwealth v. DiPietro, --- Mass. ---, --- - --- ^a, 367 N.E.2d 811 (1977). Our restatement of this rule is not to be construed as holding, or even suggesting, that an attorney must immediately interrupt the argument of opposing counsel with an objection and a request for a curative instruction on each occasion when he believes that the argument is improper. It is usually sufficient, depending on the circumstances of the particular situation, if the matter is called to the judge's attention at the end of the attorney's argument. We hold that the objection and exception in this case, made only after the completion of the judge's instructions to the jury, were too late to entitle the defendant to appellate review as of right, apart from the special review of capital cases as defined by G.L. c. 278, § 33E.

Additionally, even if the exception to the prosecutor's argument was timely, the defendant would be entitled to review only as to those matters expressly called to the judge's attention. They were the following: (a) that the prosecutor "by his rhetoric and by statements and innuendo seemingly suggested to the Jury what the evidence was by fact and by reading and by citing verbatim evidence," (b) that the prosecutor referred to three of the Commonwealth's witnesses, presumably K.P., D.G., and B.P., as witnesses who "did not want to testify," (c) that the prosecutor demonstrated before the jury the alleged act of the defendant in trying to stab the victim, and (d) that the prosecutor also demonstrated before the jury the act of Williams in throwing the victim's cane to the floor. We note that in his brief the defendant has argued only the last two of these four matters, and we therefore treat the first two as waived. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 919 (1975).

It was not argued at the trial that there was no foundation in the evidence for the prosecutor's demonstration of...